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Word Count: 2995

Did John cause Chongs death?
The test in Singapore for imputable causation is whether Johns conduct
had significantly/substantially caused the acceleration of Chongs death.1
John significantly contributed to Chongs death, because John locked his
hands around Chongs neck while standing still (to headlock). In doing so,
John placed Chong under pressure to free himself. Chongs neck was
broken in the ensuing struggle. Chong had a well-grounded apprehension
of immediate serious violence from John because he had just been
attacked with an iron bar, so it is not for John to say that his standing still
did not substantially contribute towards Chongs death. This is analogous
to Basappa2.
An alternative test for causation Defendants Reasonable Foreseeability,
is proposed in Yohanan v State3. It is advantageous in distinguishing
defendants who knowingly cause death from those who could not avoid
causing death. However it would do violence to the semantic meaning of
causation to pursue this route. Furthermore foreseeability would be
covered under mens rea as discussed below.
What could we infer about Johns intentions?
Since causation is proven, Johns definition of murder will depend on his
level of intent.
Intention is statutorily undefined. The Singapore High Court in Sim states
that defendants intend the reasonable consequence of their actions 4.
Malaysias Federal Court has rejected this definition as seldom helpful and
always dangerous5. Rightfully so, as the law should only punish and
tarnish the good name of a defendant according to the true and subjective
nature of his actions. In Malaysian6 and Indian7 common law currently, this
means the purposeful doing of something to achieve a particular end.
1 Ng Keng Yong v PP [2004] 4 SLR 89 at [66] read with Explanation 1, s
299 of the Penal Code
2 Basappa v State AIR 1960 Mysore 228.
3 AIR 1958 Kerala 207
4 Sim Yew Thong v Ng Loy Nam Thomas

[2000] 4 SLR 193, at p 194

5 Yeo Ah Seng v PP [1967] 1 MLJ 231

6 Mohd Haikal bin Mohd Khatib Saddaly & Ors v Public Prosecutor [2009] 4
MLJ 305 at [129]

Proceeding further on the Malaysian/Indian position, let us examine Johns

mens rea in terms of the four definitions of murder.

7 Ram Kumar v State of Rajasthan AIR 1970 Vol 57 Raj 60 at p 63

S 300 (a)
John will not get the mandatory death penalty under this because he did
not intend to kill Chong for three reasons:
1) Johns denial statement,
2) nothing suggests that he intended to kill Chong,
3) there were more direct ways to kill Chong such as with the iron bar.
This reasoning is accepted in Tan Chee Hwee v PP8
S 300 (c)
If we follow the interpretation in Virsa Singh9, all that is necessary is the
intent for an injury AND that injury must ordinarily (for a normal person)
cause death. John only intended to headlock which caused Chong to injure
himself. John did not intend an actual injury since he did not apply enough
force to break a normal neck. Therefore whether we take the broad
based approach of Virsa, or the narrower approach in Lim Poh Lye10, s 300
(c) fails.
S 300 (b)
is also not proven because John would have to know Chong had a weak
neck, which is not proven.
If John hypothetically knew about the weak neck and chose to headlock,
the amount of force he intentionally applied would indicate that he did
intend to break Chongs neck. In such a hypothetical event however, he
would attract liability under (b) and (c) because it is common knowledge
that broken necks are ordinarily fatal, once they occur. The increased
likelihood of breaking a neck is not contemplated by the actus reus of (b)
and (c).
S 300 (d)
requires John to know that it would certainly kill Chong or certainly cause
an injury likely to kill Chong. The knowledge required is very high here and
cannot possibly be proven since headlocking in the manner he performed
it would scarcely have resulted in major injury, much less death.
Accordingly murder will not be proven for John for the act of simply
However, if we consider the acts in together, John was clearly enraged,
screaming and hitting Chong many times with a weapon before he
headlocked. How could John say that he did not intend an injury that could
fall under 300 (c) for that? This points to some sort of intention to cause
8 [1993] 2 SLR 657
9 Virsa Singh v State of Punjab 1958 AIR 465
10 PP v Lim Poh Lye [2005] 4 SLR 582,

hurt, injury or death, combined with a blatant disregard for human life. It
would be unreasonable to doubt that this level of intent possibly carried
on into the headlock. Even if it was reasonably doubtable, a single
transaction or moral congruence approach under Shaiful Edham may be
carried out to resolve this concurrence issue11.
Accordingly, 300 (c) for murder would be possible, and if not then at least
s 299 Culpable Homicide.
What defences are available to John?
The offence elements exist assuming that John was an ordinary person.
John may rebut that presumption by looking at his subjective profile
including his psychiatric report and the influence of intoxication. Without
more, we can safely dispense with mistake, private defence, and duress.
His best option is to pursue the defence of Intoxication.
It is easiest to prove intoxication because John was smoking marijuana the
night before, and the prosecution is willing to concede intoxication. It is
also results in full acquittal, making this his best defence.
S 86(2) provides full acquittal if the effect of his intoxication is that did not
form an intention. However, In Tharema Vejayan12 and Tan Chor Jin13, the
accused was required to be unable to form an intention. The difference is
nebulous since both are questions of fact. Scientific evidence is
unavailable here, but according to Francis Antonysamy14 this is not fatal to
Johns case. What matters more is his conduct before, during and after the
Chan Kwee Fong15 provides an example of factual analysis. Here although
the defendant consumed much alcohol, the defence was rejected because
the accused could remember many details prior to the murder. It stated
that if the degree of intoxication was such that he could not inform intent
for murder, he would not have been able to remember and recount the
details he described in evidence16.
11 [1999] 2 SLR 57 at [74]
12 [2009] SGHC 144
13 [2008] 4 SLR(R) 306; [2008] SGCA 32
14 [2005] 3 MLJ 389 at [48]
15 [2010] 1 MLJ 441
16 Ibid 106

In Johns case, being unable to remember anything lifts the strongest bar
against his defence. The courts example showed that in absence of
scientific understanding, it is not necessary to draw relations between
memory and intent, or distinguish them as separate functions of the mind.
If John could not appreciate his surroundings enough to remember them,
then on balance of probabilities he would not be able to form an intent.
This defence may succeed outright. Even if this is not made out, both
psychiatrists agree that Johns mental state was impaired that day and
lacked control to some extent. This is further corroborated by Johns:
1) ease of provocation below that of an ordinary person where being
told to smoke somewhere else triggered his actions,
2) savagery of attack using an iron bar,
3) lack of accountability for his actions as he uttered Now see what
you made me do!,
4) sudden stillness and obliviousness to his surroundings
5) contradictory behaviour between elements 1-3 and 4 that suggests
his confusion
On these combined bases, it is more likely than not that John was so
intoxicated that he was unable to generate the intent required for murder.
Defences leading to qualified acquittals to a mental institution
These defences not only lead to less desirable results, but are also harder
to prove because John must disprove knowledge not just intent.
Unsoundness of Mind
In s 84 the requirement is that he was incapable of knowing the nature of
his act or that it was wrong or contrary to law. Wrong or contrary to law
is taken conjunctively in Rosman bin Jusoh17, in that both elements the
moral wrongness and the contrariness to law must be proven. However, in
cases where the offence is lighter such as Boon Yu Kai John18, a disjunctive
approach is sometimes used.
When John screamed see what you made me do! he showed that he
regretted his act and knew what he was doing. Therefore he understood
the physical nature of his act, and that it was in fact wrong. Furthermore,
a behavioural disorder due to violent games cannot constitute
unsoundness of mind, which must construed with medical evidence in
Chia Moh Heng19. (Although unsoundness of mind is not strictly clinical)

17 [1963] MLJ 84
18 [2004] 3 SLR 226
19 [2003] SGHC 108

Insane Intoxication
The court in Tan Chor Jin declared that s 85(2)(b) insane intoxication would
be available for a bout of insanity without a prior condition, and that
otherwise the requirements for knowledge in s 85(2)(b) was the same as s
84. However, a pre-existing condition would still be useful (Tan Ho Teck)20.
The validity of this view has been challenged in academia by Dr. Yeo,
preferring that a pre-existing condition be required, making 85(2)(b) a
clarification of 84 in an intoxication context, rather than a separate
In both views, the knowledge requirement is the same. John knew what
he was doing as again suggested by what he screamed. The defence will
not succeed.
An aside on intoxication-induced automatism
Should it matter whether Johns act arose from inability to form intent, or
from conscious automatism?
The policy considerations are effectively similar. The point of punishing
John under criminal law is to deter his conduct or to show societys
displeasure with it. However, if it is conduct beyond Johns control or
capacity to intend, the law only punishes the blameless while not
deterring the ordinary person. Furthermore the theoretical distinction
between purposefully and voluntarily is only legal fiction and impossible
to distinguish in empirical epistemology.
Malaysia answers this through a common law defence of non-insane
automatism that arises from intoxication. Prosecution must disprove noninsane automatism beyond reasonable doubt (Abdul Razak 2011)22.
This essay prefers recognising automatism as a proxy for disproving
intention rather than creating a separate defence for it as in Malaysia. This
would maintain consistency with the statute while maintaining
consistency in burden of proof with other true defences.

Partial Defences
Diminished Responsibility
This defence extends to volitional defects rather than purely defects of
reason. What constitutes Diminished Responsibility is a question of fact.
Ong Pang Siew23 refutes any notion of fixed prescribed causes, willing to
consider major depressive disorder and short-term alcohol dependence.
20 [1987] SLR 88; [1987] SGHC 5
21 (Yeo, 2008)
22 Abd Razak bin Dalek v Public Prosecutor [2011] 2 MLJ 237 at [15] and
Public Prosecutor v Kenneth Fook Mun Lee (No 1) {2002] 2 MLJ 563 (no
pinpoint cite)

Lim Chin Chong24


points to the contrary, rejecting acute adjustment

Remoteness of the act from the cause appears to differentiate these two
cases. In the former, the accused recently underwent depression due to
marital difficulties that manifested in insomnia, weight loss, indecisiveness
and fatigue, while in the latter the depression arose from his upbringing.
While the former had a run of bad luck, the latter had years to grow out of
his childhood trauma. Since Johns position is closer in analogy to the
latter case in both detail and remoteness, this defence will likely fail.
This defence requires an actual loss of self-control. Since the psychiatrists
agree it occurred, it is corroborated by elements 1 to 5 above, and
intoxication is a factor following Astro bin Jakaria25, this is proven.
The next element is that of grave and sudden provocation. According to
Abdul Razak (2007)26 Grave Provocation refers to what would cause an
ordinary person to lose control in that situation. This is highly objective.
For example, being punched (Rikky Purba27) or threat of sexual violation
However the court looks into objective circumstantial factors. For example
in Pathip Selvan28 the court was careful to find the emotional turbulence of
the couple as an objective factor. In Sundarti Supriyanto, it was the
abusive treatment from the deceased.
Why this defence is objective is puzzling. While the common answer is
that the law will not excuse an irritable and pugnacious person, it does not
follow that his state of mind should be left unexamined. A better reason is
that the law is out to protect victims who have no duty to infer the
subjective state of mind of their attackers. This would be consistent with

23 [2011] 1 SLR 606, [2010] SGCA 37

24 [1998] 2 SLR(R) 278
25 [2010] 3 SLR 862, [2010] SGHC 131 at [122]
26 Abd Razak bin Dalek v Public Prosecutor [2007] 2 MLJ 255 at [97]
27 Rikky Purba v Public Prosecutor [2014] 4 MLJ 569
28 Pathip Selvan s/o Sugumaran v Public Prosecutor[2012] 4 SLR 453; [2012] SGCA 44
at [61], also see Vigen a/l Sinnaya v Public Prosecutor [2012] 1 MLJ 745 at [30]

the bilaterality requirement in Tan Chun Seng29 for provocation to have

emanated from the deceased.
Nevertheless, whichever way we look at it, grave provocation should not
succeed. It is simply too low a threshold to sidestep for anybody. Thus
even if intoxication could be an objective factor as it had been in Astro,
the gravity is not proven.
Sudden fight
The three requirements to be met for the defence to operate are:
(a) there was a sudden fight in the heat of passion upon a sudden quarrel;
(b) there was an absence of pre-meditation by the accused; and
(c) the accused did not take undue advantage or act in a cruel or unusual
John immediately went into a rage and started attacking, hence there was
neither delay between the trigger and his actions nor pre-meditation.
However, there was no return offer of violence by Chong who merely
deflected his blows. This is insufficient to constitute a fight under Tan
Chee Wee30. Furthermore, John took undue advantage because he had a
weapon, and he was much stronger than Chong, violating the
requirements under Lee Twe Jeat31.

Since Danny intended to kill, s 300 (a) murder is clearly made-out. He will
not succeed on duress, intoxication, diminished responsibility or
unsoundness of mind.
Private Defence (PD)
This defence will not succeed because under s 98, it only succeeds
against offences or acts that would be offences but for youth, mistake,
unsoundness of mind or intoxication. PD is not contained within the list of
exceptions under s 98. Accordingly, Lim was not committing an offence
when he hit John. Dannys PD therefore cannot apply.
Lim satisfies the conditions for PD because:
1) There was no time for recourse to public authorities
2) Lim correctly apprehended that John would kill Chong under s 100
(a), thus reasonable apprehension was satisfied.
3) Lim acted in good faith without malice.
29 [2003] 2 SLR 500
30 [2004] 1 SLR 479 at [62]
31 [1994] 3 SLR(R) 108

4) Lim did not use excessive force, in fact, he used insufficient force to
stop John.
The Supreme Court in India in Munney Khan32 endorsed this position,
which was followed in Iswar Chandra Behera, Igni Dalai, and Durga Pal33.
From a policy perspective, Dannys right to private defence does not
exceed Lims, because Lim is also just looking out for his friend and is
equally justified in doing so. Thus the law is unable to choose between
However these cases are distinguishable since they all consist of
defendants who instigated PD from the victim by assault, before invoking
their own PD. Accordingly there was no moral hazard to be considered. In
the present case Danny did not initiate the conflict, and was only acting as
a third party. To see if such a distinction ought to be recognised, we need
to look at the theoretical basis for PD.
At risk of oversimplification, in a rights-based analysis, all human rights
spring from the right to life, making it the most important right to us. The
individuals right to defend himself is thus so integral to the individual that
he may be justified in responsibly running the risk of killing a 3rd party. (As
seen in s 106). Accordingly, once the right to PD is invoked, a 3rd partys
own right to PD cannot interfere with the first person as long as it is
responsibly carried out.
A competing theory would be of qualified utilitarianism where between
two innocent people who are acting in private defence, the law should
show favour to the survivor simply because that person has had the luck
to survive. Therefore it will not punish him for causing harm to an innocent
third party as long as he behaved responsibly. Under this theory, s 106 is
crafted because Parliament only anticipated the first defendant. In such a
case the s 98 exceptions should extend to non-Munney situations where
the defendant was not at fault. The phrasing in s 98 furthermore does not
purport to be exhaustive on a literal interpretation.
Thirdly would be because on a societal balance, society cannot favour one
defender over the other, the distinction is necessarily arbitrary. Just as
how there is no fairness between driving on the left or right, society must
make a decision and that decision is in favour of a more common scenario
of one Defender than two or more Defenders.
These are not the only theories for PD, but it demonstrates that there
really is no way of defensibly painting a bright line between meritorious
and unmeritorious claims. As such, the divining parliamentary intentions
here would be an unfruitful endeavour. The judge will have to adopt the
strict interpretation and follow Munny. Accordingly PD must fail for Danny.
32 1971 AIR 1491
33 (Yadav, 1993)

S 81 is Dannys best line of defence.
Danny correctly perceived that Lim was imminently likely to kill John since
Lim struck John on the head with an iron bar. Danny may not have acted
with necessary force since he could have pushed Lim away rather than
stabbing Lim. However, the law understands that a person cannot
calculate the necessary force with arithmetical precision. Given that Lim
was using a weapon and was also acting in the heat of the moment,
Dannys actions were at least proportional.
S 81 specifies three mental states to be satisfied: Danny must not have
instigated it, not had a criminal intention, and not been at fault nor
negligent. Danny succeeds here because although he intended to cause
death, he did not cause the situation that necessitated his causing of
death. Criminal intention is also unproven because he had no motive for
killing beyond protecting John. Lastly, neither fault nor negligence will be
proven on the facts because he did not act beyond the range of
reasonable behaviour given the suddenness and gravity of the situation.
Necessity is usually hard to plead due to its controversial nature and
sparse case law according to Ali Bin Umar34, but if the accused would
suffer some evil to himself or others of such magnitude that it may be
thought to justify the infraction of the criminal law, the court would
temper such situation with justice.
In conclusion, John will likely achieve a full acquittal because by reason of
intoxication he was unable to form an intent to kill. Danny on the other
hand must rely on Necessity.

Yadav, R. (1993). Law of Crime and Self-Defence. New Delhi: Mittal
Yeo, S. (2008). Criminal Law. 2008 SAL Annual Review, 247-264.

34 [1982] 2 MLJ 51